SZEVN Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1698
•17 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZEVN Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1698
SZEVN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1425 OF 2005
GRAHAM J
17 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1425 OF 2005
BETWEEN:
SZEVN
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE OF ORDER:
17 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent's costs fixed in the sum of $3000.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1425 OF 2005
BETWEEN:
SZEVN
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GRAHAM J
DATE:
17 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant was born on 6 November 1959 in Harbin, Heilong Jiang in China. On 9 December 2002, she obtained a Chinese passport. On 22 December 2003, she secured an Australian visitor's visa that was valid until 15 January 2004. She arrived in Brisbane on 1 January 2004.
On 12 January 2004, she lodged an application for a Protection (Class XA) Visa. That application was accompanied by a statement containing two pages of typed script. In that statement the Appellant said
“I want to seek protection in Australia because in China I was persecuted because I was a Fa Lun Gong practitioner but in Australia I have freedom to practise Fa Lun Gong.”
Later in the statement she said:
“My hometown is in North East China, where Fa Lun Gong was very popular. I joined Fa Lun Gong in 2000 when the Chinese Government had started to punish all the Fa Lun Gong people. So I practiced at home and in the garden of our Fa Lun Gong group leader with a small group of my fellow Fa Lun Gong believers. We practised underground. But still the local people found our group activities. But at that time the local police, many of whom knew us very well, did not take serious action against us and they just told us to stop.”
Still later in the statement the Appellant said:
“The main reason why I applied for protection in Australia is: if I return to China, I can not practise Fa Lun Gong and if I keep practising in China, I would be bullied and persecuted by the Chinese Government. But it is now impossible for me to give up Fa Lun Gong, so I have fear for returning to China.”
The appellant's application for a protection visa was refused by the delegate of the Minister on 29 January 2004. On 2 March 2004, the Appellant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. The application for review was accompanied by a statement by the Appellant in which she substantially repeated what had been in her original application for a protection visa. Amongst other things she said:
“The main reason why I apply for protection in Australia is if I return to China I can not practise Fa Lun Gong and if I keep practising in China, I would be bullied and persecuted by the Chinese Government but it is now impossible for me to give up Fa Lun Gong so I have fear for returning to China.”
In her application for review of the delegate's decision, the Appellant provided a home address and also a mailing address. On 6 April 2004, the Tribunal wrote to the Appellant at her nominated mailing address with a copy to her at her specified home address. The copy letter of 6 April 2004 records the registered post numbers provided in respect of the posting of the letter to the two addresses.
The letter of 6 April 2004 contained a sentence reading:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
In these circumstances, the letter proceeded to invite the Appellant to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims on Wednesday, 12 May 2004 at 10.30 am. The letter indicated that it would be possible for the Appellant to obtain oral evidence from other persons as well.
The Appellant failed to appear before the Tribunal at the designated time and place. She says now that she went to Melbourne to work and did not receive the letter. If this were true it may be unfortunate. However, it must be noted that on 3 March 2004, the day after the day of filing of her application for review, the Tribunal wrote to the Appellant at her designated mailing address saying:
“You should:
· tell us immediately if you change your home address, your mailing address ...”
On 24 May 2004, the Tribunal recorded its decision to affirm the decision of the Minister's delegate not to grant a protection visa to the Appellant. On 26 May 2004 a letter was sent by the Tribunal by registered post to the Appellant at her specified mailing address advising her that the decision in her case would be handed down on 15 June 2004. On that same day the Tribunal wrote to the Appellant advising her that it had decided that she was not entitled to a protection visa and forwarded to her a copy of the Tribunal's reasons for decision.
On 7 July 2004, the Appellant filed an application for the issue of constitutional writs in the Federal Magistrates Court under section 39B of the Judiciary Act1903 (Cth) in respect of the Tribunal's decision. That application nominated as the relevant grounds:
“1.I was not given a proper opportunity to explain my case.
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.”
On 30 December 2004 or thereabouts the Appellant filed an amended application in the Federal Magistrates Court. That application was dismissed on 2 August 2005, whereupon the Appellant filed a notice of appeal in this court and an accompanying affidavit of 17 August 2005.
The grounds specified in the notice of appeal were:
“2.I found jurisdictional errors with the RRT’s decision, and I believe that my application should be returned to RRT for reconsideration.
3.The Judge at Federal Magistrates did not carefully consider the errors that I put forward at the hearing, and made the decision to refuse my application on the say.
4.I believe that I meet the criterion for the refugee status.”
In the accompanying affidavit sworn 17 August 2005, the Appellant said:
“I need the opportunity to explain my cliams about my application for a protection visa and I will no more chance to lodge another application if my case is not successful at the review at court. RRT fialed to assess the chance of my being persecuted on my return to CHina due to my membership with Falun Gong. THe Tribunal officer fail to understand my claims and had bias against when considering my application. ...”
The Tribunal's decision noted the claim by the Appellant that she faced persecution in China on the grounds of religion, namely her adherence to Fa Lun Gong. The Tribunal in its decision said under the heading “Findings and Reasons”:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”
It will be appreciated that under s65 of the Migration Act 1958 (Cth) (“the Act”), the Minister may only grant a visa if satisfied of certain matters. If not so satisfied, the Minister is to refuse to grant the relevant visa. Under s414 of the Act, the function of the Tribunal is to review the Minister's decision or that of the Minister's delegate and under s 415, the Tribunal may affirm the decision, vary the decision, remit the matter for consideration in accordance with such directions or recommendations of the Tribunal as are permitted by the Regulations, or set the decision aside and substitute a new decision.
In the Tribunal's decision, it was indicated that the letter of 6 April 2004 had advised the Applicant that the available material was insufficient for it to make a favourable decision.
The Tribunal noted that it had not had the opportunity, through a hearing or other means, to obtain further information to determine the veracity of the Applicant’s claims and their relevance to her application for refugee status.
It proceeded to nominate eight separate items in respect of which it was unable to be satisfied in the circumstances. By reference to the material which was before it the Tribunal was unable to be satisfied that the Appellant adhered to Fa Lun Gong, that she had in the past been subject to persecutory harm in China for that or for any other reason, or that there were any other past or current circumstances giving rise to a well-founded fear of persecution within the meaning of the Convention. The Tribunal was thus unable to be satisfied that the Appellant was a refugee.
As the Tribunal pointed out, a decision-maker is not required to make an Applicant's case for her, nor is the Tribunal required to accept uncritically any and all allegations made by an Applicant. The Tribunal concluded that the Applicant did not satisfy the criterion for a protection visa and affirmed the decision of the Minister's delegate. In the circumstances, any suggestion of bias on the part of the Tribunal is without foundation. No jurisdictional error on the part of the Tribunal has been identified by the Appellant.
The Appellant had an opportunity to appear before the Tribunal. She was appropriately invited to appear and did not do so. The Tribunal was fully entitled to make its decision upon the review without taking any further action to allow or enable the Appellant to appear before it. In this regard, it is appropriate also to note that no points of telephone contact were provided by the Appellant in her application for review. The Federal Magistrate ordered that the application of the Appellant be dismissed and that the Appellant pay the Minister's costs fixed in the amount of $3000.
It seems to me that the appeal is quite without foundation and should be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Dated: 30 November 2005
The Applicant appeared in person
Counsel for the Respondent:
S B Lloyd
Solicitor for the Respondent:
Phillips Fox
Date of Hearing:
17 November 2005
Date of Judgment:
17 November 2005
0
0
0